Medical malpractice attorney John Fisher, P.C., learned 10 years ago during a birth asphyxia case why filming is crucial for a deposition
"In the deposition of a labor and delivery nurse, the question posed was whether good and accepted nursing standards required the nurse to notify the physician when confronted with non-reassuring fetal heart tracings," Fisher wrote in a recent blog post. "The OB nurse paused, then looked up at the ceiling (as if looking for an escape hatch), and then she finally answered, 'That depends.'"
Fisher asserted that the answer was "meaningless," but how the nurse answered was vital.
"When the lawsuit went to trial and I played the videotape of the nurse’s deposition testimony, I watched the expressions on the jurors’ faces as they saw the nurse cringe while answering the question," Fisher said. "After the trial concluded, the jury later told me that the nurse’s answer to this single question was the reason they had decided to side with the plaintiff. Let’s get this right: a $400 videotape deposition provided the basis for a multiple seven-figure recovery ($4.1 million to be exact)."
If a picture says a thousand words, a pause says just as many, explains Teresa Evans, owner of Realtime Reporters, a Charleston, West Virginia company that provides deposition recording services.
"You just never know how the witness is going to act," Evans said. "It's not about the words, but the way they say them. A video deposition conveys the weight of the words and the evidence. If you didn’t videotape it, all you have are some words on a page. Jurors want to see things."
The veteran court reporter rates traditional audio/paper depositions at 2 percent and video depositions at 100 percent in terms of effectiveness when being played before a jury, used for a focus group or in mediation.
While sitting in a cabled room, with microphones and a large camera tuned up close, a witness quickly understands that this is real, and it captures their attention in myriad ways.
"If you videotape your deposition, the message is sent to the witnesses and the other side that this is serious," Evans said. "The attorney is putting the opposition on notice that we have a good case. We're spending money and effort, so get ready for me."
She also notes that attorneys can use video depositions as part of their overall strategy for winning.
"I believe people are more intentional in answering and don’t just blab, like they do with just a court reporter typing on a stenograph machine," Evans said.
The average video deposition is 3 hours long, compared to 160 to 180 pages of words typed on a page.
"A deposition is where we find out what your story is," Evans said. "It captures things that paper cannot. Also, reading from paper during a trial can be dry. The person reading sometimes can’t read it right. Reviewing the video deposition is invaluable before you put your witness up on the stand. If the witness didn’t present themselves well, oftentimes counsel will say, 'We better settle this thing.'"
Realtime Reporters has pushed - and used - video depositioning heavily the past 10 to 15 years. However, technology and a more screen-centric, digital-based culture have made it much more popular in the past 10 years.
"More clients are analyzing it and seeing the value of it," Evans said.